Citation NR: 9802793
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 95-20 251 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to an increased evaluation for service-connected
residuals of a right shoulder injury, currently evaluated as
20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. A. Holihan, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to June
1971, and from September 1978 to July 1990.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from the July 1994 Department of Veterans Affairs
(VA) Regional Office (RO) rating decision which denied the
veteran’s claim for an increased (compensable) evaluation for
service-connected residuals of a right shoulder injury. In a
subsequent rating determination, dated in April 1997, the RO
awarded an evaluation of 10 percent, as of October 1993, and
an evaluation of 20 percent from November 1996, for the
veteran’s service-connected right shoulder disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that his service-connected
right shoulder disability is more severe than is represented
by the current 20 percent evaluation, and more closely
approximates the criteria required for a 30 percent
evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the a preponderance of the
evidence is against the claim for an increased evaluation for
service-connected residuals of a right shoulder injury.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the issue on appeal has been obtained.
2. Manifestations of the veteran’s service-connected right
shoulder disability include a limitation of active forward
flexion to 85 degrees, abduction to 85 degrees, internal
rotation to 70 degrees, external rotation to 65 degrees, with
pain associated with motion beyond all stated limits. The
veteran reports pain with activity involving the right
shoulder.
3. The veteran’s service-connected right shoulder disability
is not shown to present an unusual or exceptional disability
picture.
CONCLUSION OF LAW
The schedular criteria for a rating in excess of 20 percent
evaluation for residuals of a right shoulder injury have not
been met. 38 U.S.C.A. § 1155, 5107 (1991); 38 C.F.R.
§§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5201 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claim for entitlement to an increased rating
for his service-connected right shoulder disorder is well-
grounded within the meaning of 38 U.S.C.A. § 5107(a). A
well-grounded claim is a plausible claim which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The veteran has not
asserted that any records of probative value which are not
already associated with his claims folder are available. The
Board is satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required in order to comply with the duty to assist him as
mandated by 38 U.S.C.A. § 5107.
Factual Background
The veteran’s service medical records indicate that he
injured his right shoulder in January 1985, when he slipped
on ice and fell, landed on his right elbow, injuring his
right shoulder. The veteran’s service medical records
indicate that his left hand is his predominant hand.
However, he explained later that he writes and shoots with
his left hand, but performs most other activities with his
right. Further service medical records, dated more than a
year after the incident, document complaints of pain in the
shoulder with use.
In a rating determination dated in June 1991, the RO granted
service connection for right shoulder strain with a zero
percent evaluation, effective August 1990.
Medical records from the VAMC Fort Carson, dating from
February 1991 to September 1991, show post-service treatment
for complaints of right shoulder pain, and refer to a
reinjuring of his right shoulder in approximately April 1993,
which was at least partially attributed to aggravation of the
prior injury while working as a janitor.
The veteran was afforded a VA examination of his right
shoulder in December 1993. The examiner noted that the
record showed increased complaints of right shoulder pain
after service, associated with his employment. Though the
examiner noted a full range of motion of the right shoulder,
slow and painful motion was observed in the final 30 degrees
of forward flexion. Weakness was also noted, but no atrophy
was identified. On the basis of those findings, the RO
denied the veteran’s claim for an increased evaluation in
July 1994.
The veteran appealed the determination, and he was afforded
another VA examination in January 1997. At that time, the
veteran informed the examiner that though he writes with his
left hand, he performs most other tasks with his right hand,
and that many tasks, such as lifting, pushing, swinging and
“moving up”, all cause pain. He reported that his disability
prevented him from teaching gym class, and limited his
involvement in sports and housework. Upon physical
examination, it was noted that the veteran was capable of
abduction of the left shoulder to 180 degrees, forward
flexion to 180 degrees, rotation to 90 degrees, both external
and internal. On the right side, the veteran was only
capable of active abduction to 85 degrees, forward flexion to
85 degrees, internal rotation to 70 degrees, and external
rotation to 65 degrees. No further active motion of the
right shoulder was possible without pain. Upon passive
motion tests, the veteran was capable of right shoulder
abduction to 110 degrees, forward flexion up to 90 degrees,
extension up to 50 degrees, bilaterally, and internal
rotation to 80 degrees and external rotation to 75 degrees.
Beyond these points, muscle spasm and pain limited motion.
No localized tenderness was noted over the muscles. The
acromion tip and acromioclavicular joint areas were slightly
tender; mild tenderness was noted over the glenoid labrum
superiorly, under the clavicle tip. The coracoid, scapula
and muscles were nontender. Neurological findings appeared
to be normal. Bilateral shoulder x-rays were normal, and a
diagnosis of possible right rotator cuff tendinitis was
stated.
In March 1997, the RO returned the VA examination to the
examiner for an opinion regarding the impact of the April
1993 injury to the right shoulder, as it was not addressed in
the VA examination report of January 1997. The VA examiner
responded with a report which considered the evidence of
record in the claims file, and reported that the veteran
experienced chronic pain in the right shoulder, which was
aggravated by minor injuries. The examiner stated that the
veteran was right-handed, and had been employed as a janitor.
Further, the examiner noted that prior statements finding no
atrophy of the right shoulder were, in his opinion, wrong, as
the fact that the veteran is right-handed indicates that his
right shoulder should be greater in size than the left, and
that their similar size indicated that the right side was
atrophied. The examiner also noted that the veteran was
being treated with anti-inflammatory medications, which
seemed to be giving him relief from his symptoms.
The examiner concluded that the veteran’s 1985 inservice
injury marked the start of his shoulder problems, and made
him vulnerable to repeated minor injuries. Finally, it was
stated that the veteran’s inservice injury caused gradual
pain and some muscular and some ligamentous tearing, which
caused fibrosis, that the pain had been present for a long
time, and that the injury of January 1991 was less than 25
percent contributing to the veteran’s current condition. On
the basis of the VA examiner’s supplemental findings, the RO,
in April 1997, granted an increased evaluation of 10 percent
from October 1993, and an increased evaluation of 20 percent,
rated under limitation of motion of the shoulder, as of
November 15, 1996. The RO also determined that an
extraschedular consideration was not warranted.
Legal Analysis
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities (Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1996).
Separate diagnostic codes identify the various disabilities.
In determining the disability evaluation, the VA has a duty
to acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). These regulations include 38 C.F.R. §§ 4.1, 4.2,
which require the evaluation of the complete medical history
of the claimant’s condition. These regulations operate to
protect claimants against adverse decisions based on a
single, incomplete, or inaccurate report, and to enable the
VA to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath, 1
Vet. App. at 593-94.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55 (1994).
Though the veteran’s service medical records identify him as
left-hand dominant, the veteran has indicated in the record
that he uses his right hand for most non-writing activities.
Therefore, the Board will consider the veteran’s right arm to
be his major arm for the purposes of evaluating his right
shoulder disability.
Under the applicable provisions, a 20 percent evaluation (the
minimum rating provided under this code) is warranted when
the major arm has limited motion to shoulder level; a 30
percent is warranted for motion limited to midway between the
side and shoulder level; and a 40 percent evaluation requires
that motion of the major arm be limited to 25 degrees from
the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal
range of motion for the shoulder is as follows: forward
elevation (flexion) to 180 degrees; abduction to 180 degrees;
internal rotation to 90 degrees; and external rotation to 90
degrees. 38 C.F.R. § 4.71, Plate I.
A 30 percent evaluation may also be warranted for malunion of
the humerus of the major upper extremity with marked
deformity, or for frequent episodes of dislocation of the
scapulohumeral joint with guarding of movement at the
shoulder level or with guarding of all arm movements; a 50
percent evaluation is warranted for fibrous union of the
major humerus; a 60 percent evaluation is warranted for
nonunion (false flail joint) of the major humerus, and 80
percent for loss of the head of the major humerus (flail
shoulder). 38 C.F.R. § 4.71a, Diagnostic Code 5202.
Further, a 30 percent evaluation is warranted for favorable
ankylosis of the scapulohumeral articulation of the major
upper extremity. Ankylosis is considered to be favorable
when abduction is possible to 60 degrees and the individual
can reach his or her mouth and head. Ankylosis of the
scapulohumeral articulation of the major upper extremity
which is intermediate between favorable and unfavorable
ankylosis warrants a 40 percent evaluation. A 50 percent
evaluation requires unfavorable ankylosis. Ankylosis is
considered to be unfavorable when abduction is limited to 25
degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code
5200. As there is no evidence of malunion, nonunion or
ankylosis by x-ray or examination, these provisions are not
for application in the veteran’s case.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
At the time of the January 1997 VA examination, the veteran
demonstrated a limitation of flexion to 85 degrees, abduction
to 85 degrees, internal rotation to 70 degrees, and external
rotation to 65 degrees. Beyond that range, the arm could be
passively moved but motion was painful. The current 20
percent assigned for the disability contemplates motion
limited to shoulder level (90 degrees from the side). 38
C.F.R. § 4.71, Plate I.
In evaluating service-connected disabilities, the Board is
also required to consider functional impairment due to pain.
In pertinent part, 38 C.F.R. § 4.40 provides that it is
essential that the examination on which ratings are based
adequately portray the anatomical damage, and the functional
loss, with respect to the normal working movements of the
body with normal excursion, strength, speed, coordination and
endurance. The regulation specifies that functional loss
"may be due to pain, supported by adequate pathology and
evidenced by the visible behavior of the claimant undertaking
the motion, and a part which becomes painful on use must be
regarded as seriously disabled." Adequate pathology includes
weakness, atrophy and changes in skin condition. Id. 38
C.F.R. § 4.45(f) provides that when rating the joints for
purposes of disability benefits, inquiry will include
consideration of pain on movement.
In the instant case, the veteran complains of pain with
lifting, pushing, swinging and “moving up,” and limitation of
his ability to teach physical education, play sports, and do
yard work and other activities. The veteran’s arm can
passively be abducted to 110 degrees and forward flexed to 90
degrees. However, due to pain, it can be actively flexed
only to 85 degrees and abducted to 85 degrees. Accordingly,
there is additional limitation of motion due to pain.
Nevertheless, the total loss of motion does not more closely
approximate motion limited to only mid-way between the side
and shoulder (45 degrees) as required for a 30 percent rating
for the major extremity. 38 C.F.R. § 4.71a, Diagnostic Code
5201. As explained, the 20 percent rating compensates for
the additional limitation of motion due to pain. Although
shoulder disabilities can be rated under other diagnostic
codes, including those based on skeletal impairment, x-rays
of the shoulder in January 1997 showed no abnormality.
Moreover, there is no evidence of dislocation of the shoulder
or scapula or clavicle, or of nonunion of the bones of the
shoulder. Accordingly, the disability is properly rated on
the basis of limitation of motion with consideration of the
provisions of 38 C.F.R. § 4.40, 4.45.
The evidence does not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards and thus warrant
assignment of an extraschedular evaluation under 38 C.F.R. §
3.321(b)(1). The veteran has not required frequent periods
of hospitalization for the disability and there is no showing
that the right shoulder disability has resulted in marked
interference with employment.
ORDER
A rating is excess of 20 percent for residuals of a right
shoulder injury is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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